Mrs L Oyebisi v Hyde Housing Association Ltd: 2306525/2020 and 2305977/2020
EMPLOYMENT TRIBUNALS
Case No 2306525/2020, 2305977/2020
Between
Mrs L OyebisiClaimantHyde Housing Association LtdRespondent
Before
Employment Judge K AndrewsDate 28 November 2025
JUDGMENT
The claimant’s application dated 27 January 2021 for a reconsideration of the Order refusing interim relief sent to the parties on 13 January 2021 is refused.
REASONS
[1]There is no reasonable prospect of the original decision being varied or revoked.[2]The decision was made on the basis of facts that both parties agreed were accurate. The nature of an interim relief hearing is such that no detailed scrutiny of evidence should be necessary and no evidence was submitted by the claimant. In any event as per rule 95 of the Employment Tribunal Rules 2013 no oral evidence will normally be heard at such a hearing. The submissions made by the claimant’s representative – both oral and written – were fully taken into account.[3]The correct test was applied and although the hearing was relatively short, this test was given full consideration.[4]The hearing was subject to some technical difficulties but was not ‘chaotic’ as the claimant alleges.[5]Further, I do not accept that the claimant’s representative was at any disadvantage let alone an extreme disadvantage as he suggests in his email dated 3 February 2021.[6]The claimant (in person) on 23 December 2020 applied for a postponement of the hearing for medical reasons and to allow her to obtain representation. The respondent objected to that application and also asked for the hearing to be held by video. The claimant replied again asking for a postponement and that the hearing to be held in Case Number: 2306525/2020 person. The Tribunal wrote to the parties on 5 January 2021, on the instructions of the Regional Employment Judge, refusing the application for a postponement as an interim relief hearing should be heard as soon as possible and that the medical evidence provided by the claimant did not address her ability to attend a hearing. It was also confirmed that due to the latest government guidelines regarding Covid-19, the hearing would take place by video link. Full details were enclosed as to how to access that link.[7]The hearing therefore proceeded on 6 January 2021 and was due to commence at 10am. I was informed by the clerk at 10am that the claimant was present but her expected representative was not. I asked the clerk to obtain the representative’s number from the claimant and to call him to establish the position. At 10.25 I spoke to the parties, the claimant’s representative was still not available, and agreed to start the hearing at 11.15 to accommodate the claimant’s representative who I was told had had a recent bereavement.[8]Mr Ogbonmwan did then attempt to join the hearing at 11.15 but there were some technical difficulties with him doing so. By 11.55 I had been provided with the claimant’s submissions (which he had emailed in at 11.08) and he had been provided with the documents from the respondent. The hearing was then able to get underway and Mr Ogbonmwan addressed me on his application. Following his full oral submissions Mr Caiden made brief oral submissions in reply in addition to his skeleton argument and at 1.05 Mr Ogbonmwan made some brief points in reply.[9]I adjourned to consider my decision. We resumed at 1.35 when I informed the parties that the application was unsuccessful and gave oral reasons (written reasons have subsequently been provided on the request of the claimant). Directions for the future conduct of the matter were also discussed and agreed.[10]I was and remain fully satisfied that Mr Ogbonmwan had the opportunity to make whatever representations he wanted on behalf of the claimant. He did not indicate that he was at any disadvantage by the hearing proceeding and I did not form that view.[1]This was the claimant’s application for interim relief. Her employment terminated on 8 October 2020 and the application was made on 15 October 2020.[2]The claimant was represented by Mr Ogbonmwan. There were a number of technical difficulties encountered at the commencement of the hearing (which was delayed due to Mr Ogbonmwan’s understandable initial absence due to a very recent bereavement). Ultimately however we were able to overcome those difficulties and I was satisfied that Mr Ogbonmwan was fully able to present the claimant’s case. He had also sent written submissions to the Tribunal on the morning of the hearing which I had before me and took into account. I also had a written skeleton argument from Mr Caiden for the respondent together with a bundle of documents.
The Relevant Law
[3]By section 128(1) ERA, an employee who presents a complaint of automatic unfair dismissal pursuant to section 103A may apply to the Tribunal for interim relief. Section 103A provides that an employee who is dismissed shall be regarded as unfairly dismissed if the reason or principal reason is that the employee made a protected disclosure.[4]An application for interim relief will be granted where, on hearing the application, it appears to the Tribunal that it is likely that on determining the complaint to which the application relates, a Tribunal will find that the reason for dismissal is the one specified (s.129(1) ERA). The burden of proof is on the claimant.[5]The case of Taplin v Shippam Ltd (1978) ICR 1068 EAT defined “likely” in section 129(1) as a “pretty good chance of success”. That test was reaffirmed in the case of Dandpat v The University of Bath and ors UKEAT/0408/09.[6]The standard of proof required is greater than the balance of probability test to be applied at the main hearing. The EAT recognised in the Dandpat case that such a high burden of proof is necessary as the granting of such relief will prejudice a respondent who will be obliged to treat the contract as continuing until the conclusion of the proceedings. Such a consequence should therefore not be imposed lightly. Factual Context[7]The following chronology of events is agreed between the parties:a. The claimant commenced employment on 14 October 2019.b. The respondent’s concerns about the claimant’s performance were – at least to some extent – raised with her at formal one to one meetings on various dates between 26 November 2019 and 16 January 2020.c. On 27 January 2020 the claimant commenced a period of long-term sick leave.d. On 29 January 2020 the claimant made an allegation to her employer of sexual harassment by a colleague – an alleged protected disclosure. Thereafter the claimant says that she made further protected disclosures to the respondent’s occupational health service as well as the police and in the course of subsequent grievances.e. A subsequent investigation and disciplinary process by the respondent did not uphold the allegation against the colleague.f. The claimant was due to return to work in July 2020 and she was invited to a probationary review to be held by Ms Hill. This was put on hold however as the claimant again went on sick leave and raised a grievance against Ms Hill. That grievance (and appeal) was not upheld but it was decided that Ms Edwards would chair the probationary review.g. All internal processes having been concluded, Ms Edwards held the probationary review in the absence of the claimant on 5 October 2020. On 8 October 2020 the claimant was informed that her employment was terminated owing to poor performance and not passing the probationary period.[8]For the purposes of this hearing I assume that the disclosures relied upon by the claimants were protected disclosures. That assumption is only for the purposes of today however and whether or not they were in fact protected remains a live issue for a future tribunal.[9]Even from that starting point however I am not persuaded that the claimant has satisfied the necessary test for interim relief to be granted namely that she has a high degree of likelihood of succeeding with her argument that the reason or principal reason for the dismissal was one or all of those disclosures.[10]There is very clearly a very triable issue as to the reason for the dismissal not least because of the apparent documentation by the respondent of performance concerns with the claimant in December 2019 and January 2020 before the incident took place in January 2020 and before any protected disclosures were made. Also the dismissal letter itself expressly stated that the review was of the claimant’s performance before her period of absence started in January and that absence followed the alleged incident.[11]The issue as to what the reason(s) for dismissal was can only be resolved by hearing and testing evidence together with a full and proper consideration of the documentation. It may well be that the concerns raised by the claimant about the respondent’s approach to her treatment generally and to her dismissal are valid but on the basis of the information before me, I cannot say that those concerns amount to a “pretty good chance of success” of her automatically unfair dismissal claim. Accordingly the application for interim relief fails.
The Relevant Law
[1]The Tribunal apologises for the delay in providing these written reasons. The claimant’s request however was not referred until recently.[2]On the second day of an open preliminary hearing (on the 8/10/2021) the respondent’s application to strike out the claims under Rule 37(1)(b) and (c) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 was successful as: o the manner in which the proceedings have been conducted by or on behalf of the claimant has been scandalous, unreasonable or vexatious; and o the claimant had not complied with the Order of the Tribunal dated 9/4/2021.[3]The proceedings have been conducted scandalously, vexatiously and unreasonably by the claimant’s representative and although less serious, there have been repeated non-compliance with the Tribunal’s Orders.[4]The Tribunal was satisfied and as had been demonstrated over the two day hearing, that Mr Ogbonmwan sees this case as a crusade. He is not acting in the claimant’s best interests and is pursuing his own agenda against the respondent. His conduct has been disrespectful and that was evidence by him laughing and smiling when Mr Cook was making his application. There has been a persistent disregard of the Tribunal’s orders and during the course of this hearing and flagrant breaches of protocol. The Tribunal reminded the parties at the start of the hearing that although this hearing was a formal hearing (even though it was conducted via CVP) all of the usual protocols applied.[5]In addressing the 3 stage test in Bolch v Chipman 2004 IRLR 140, the Tribunal did find Mr Ogbonmwan’s conduct of the proceedings and during the hearing amounted to scandalous, unreasonable and vexatious behaviour.[6]The Tribunal then had to consider if a fair trial is still possible and concluded that it was not. Even with the threat of the two claims being struck out, Mr Ogbonmwan continued to make scurrilous allegations, entirely without foundation. Furthermore, he would not engage with the Tribunal when attempting to identify the issues, which was a matter which this hearing was clearly listed to consider.[7]The Tribunal has considered whether another penalty is appropriate, such as a costs order. As Mr Cook submitted, even if the claimant or her representative could meet any costs award made, it is clear that Mr Ogbonmwan would not be prepared to conduct himself appropriately.[8]The claimant was present throughout the hearing (it is accepted she may not have attended the final session, it was not clear) and she was aware of how Mr Ogbonmwan was behaving and how he has behaved in the past in his conduct of the proceedings. She has seen the responses from him in respect of Tribunal outcomes, for example his response to the failed Interim Relief application.[9]The Tribunal accept the submission made about Mr Ogbonmwan’s repeated outrageous allegations and was taken to various examples in the bundle. He was warned, referring to the exchange the previous day when it was said that the Interim Relief application was concluded, it had been reconsidered and there had been no appeal. Mr Ogbonmwan was asked to move on and to respond to the application to reject the ET1 and he replied that the Tribunal was biased and had pre-judged matters. Despite that warning, he continued to make allegations against Judges and on this occasion Mr Cook (and previously in writing against Mr Caiden – whom he accused of criminal acts).[10]Mr Ogbonmwan repeatedly made misleading statements. He said for example Judge Andrews agreed the claimant had made protected disclosures, she clearly said the opposite. He said in response to the strike out application that Judge Truscott had listed this case for a final hearing and that he himself was going to hear the case. In fact Judge Truscott listed this preliminary hearing and expressly said it could be heard by any Judge.[11]Mr Ogbonmwan was discourteous and had to be muted on occasions so that Judgement could be delivered. He disregarded clear instructions, such as re-joining times.[12]It is also accepted there has been non-compliance with Orders of the ET so as to fall within Rule 37 (1)(c). Mr Ogbonmwan demonstrated that, irrespective of what he was directed to do and when, that he submitted whatever it was he wanted to submit when he chose to do so. The respondent did not object to the very late submission of the response to (what was referred to as) the strike out application. As observed, there was no evidence for the excuses Mr Ogbonmwan provided and it was probably not cost effective for the respondent to object and it was better served to proceed with its application. That however demonstrates Mr Ogbonmwan’s contemptuous disregard for the Tribunal’s Orders.[13]The previous day’s application took so long due to Mr Ogbonmwan incoherent and unstructured pleadings which as a result took a considerable and disproportionate amount of time to read. The respondent reasonably offered Mr Ogbonmwan a final chance at 12.10pm when the hearing resumed to co-operate with progressing to agree a list of issues without disruption. He did not take that opportunity and continued to argue. Another example was, when asked a very simple question, had anything arisen overnight or could the Tribunal move onto giving Judgment? Mr Ogbonmwan instead attempted to re-open the time limit given to him the previous day. It had been made perfectly clear that he had limited time to speak and it was suggested that he set out the claimant’s position in response to the respondent’s application. He interruptions resulted him being muted in order to continue.[14]Mr Ogbonmwan was warned that he could not continue to behave with impunity and that if he continued to do so, that there was a risk of a costs order or the claim being struck out.[15]Due to Mr Ogbonmwan’s disruptive and therefore unreasonable conduct, what should have been more than ample time of two days to deal with the five matters listed, resulted in unsuccessfully attempting to identify the issues at 11.35am on the second day, when Mr Ogbonmwan did not rejoin and did not provide any explanation after a break (which was granted to assist the claimant).[16]To conclude, Mr Ogbonmwan has demonstrated contempt towards the Tribunal and the processes to be followed. Both his behaviour and conduct of the proceedings amounts to scandalous, vexatious and unreasonable conduct so as to warrant striking out the claim. Although of itself, the Tribunal would not have found the non-compliance with the Orders of the Tribunal enough to warrant strike out, that coupled with the conduct does lead to striking out the first two claims.
The Relevant Law
[1]At a preliminary hearing on 8/10/2021 the claimant’s claim was struck out as: the manner in which the proceedings had been conducted by or on behalf of the claimant was scandalous, unreasonable or vexatious; and the claimant had not complied with the Order of the Tribunal dated 9/4/2021.[2]The claimant requested written reasons further to the oral reasons given on 21/10/2021. Unfortunately, for some reason that request did not reach the Employment Judge for some time and the written reasons were provided on 12/5/2022.[3]The respondent at the conclusion of that preliminary hearing, expressly reserved its position in respect of a cost application.[4]The respondent subsequently made an application for costs against the claimant and for wasted cost against Mr Ogbonmwan on 28/1/2022. This costs hearing was listed on 19/1/2023.[6]That notice of hearing was sent directly to the claimant as Mr Ogbonmwan had ceased to act for her.[7]Cost directions were sent to Mr Ogbonmwan and the respondent on 7/12/2022. The claimant said she had seen the directions, however she did not comply with them. Those directions included a standard reference to Rule 42; that any written representations should be provided seven days before the hearing.[8]Mr Ogbonmwan’s status is that of a lay representative. The respondent submitted and Mr Ogbonmwan did not disagree, that although he is a lay representative, he had acted and continues to act for a number of claimants and as such, he is familiar with Tribunal proceedings and the standard of conduct required of representatives.[9]Mr Ogbonmwan set out that he represented the claimant acting for a charity called CAMC Charity (Christ Ambassadors Miracle Centre) based in Reading. He no longer represents the claimant and he attended this hearing as wasted costs were sought against him. On occasions, it appeared that Mr Ogbonmwan considered he was still representing the claimant, he was not. The claimant represented herself.[10]There is another concern in respect of Mr Ogbonmwan’s status. He said that he represented the claimant as a family friend of over 20-plus years. He said that he was not paid, but that he received expenses for things such as photocopying, taxis and hotels. The claimant said that she had paid Mr Ogbonmwan a sum of approximately £5,000 or just under that sum.[11]Mr Ogbonmwan joined the hearing, but he said that the camera on his laptop was not working. Mr Cook and the claimant agreed to proceed without Mr Ogbonmwan’s video being switched on.[12]On the Friday preceding this hearing and again at the start of the hearing Mr Ogbonmwan made an application for the hearing to be postponed. He relied upon various reasons, including the fact that he was not on notice of the hearing (clearly he was) and the format of the documentation sent to him. He referred to racially aggravated intimidation he has experienced as a black lay representative and he accused the Tribunal and the Judge of bias, an orchestrated conspiracy to avoid a fair hearing and entrenched white privilege.[13]The respondent objected to the hearing being postponed and the claimant did not express a view. The respondent explained that he had sent copies of correspondence relating to this hearing to Mr Ogbonmwan and when he objected to an electronic copy of the bundle being sent to him, sent him a hard copy. Besides the delay and additional cost to the respondent, the respondent objected that the postponement application was made less than a working day before the hearing was due to start. Furthermore, this was a 2020 claim, which had never proceeded beyond a preliminary hearing.[14]Mr Ogbonmwan’s application was refused. He was on notice of the hearing and had been copied into the correspondence. The Tribunal had confirmed to the claimant and respondent on 4/5/2023 that Mr Ogbonmwan had been notified of this hearing. He was aware that the respondent was making a wasted costs application against him personally. It was in the interests of justice and in accordance with the overriding objective that the hearing proceeded.[15]During the application, Mr Ogbonmwan repeated a statement he had made in his email. He said that at the previous preliminary hearing, the respondent’s application for costs was ‘denied’, was not reasonable or warranted and that the response had been to strike out the claimant’s claims. In essence, Mr Ogbonmwan contented that the costs application had already been determined and dismissed.[16]Mr Cook took the Tribunal to his note of the exchange, which read: ‘…on costs, we are expressly reserving our position on costs and/or expressly the wasted costs of this hearing. If instructed to make an application we will do so in the normal way. I’d be grateful if you could reserve that application to yourself.’[17]That concurred with the Tribunal’s own note, which recorded: ‘the respondent would not make an application now for costs, but requested the Tribunal to record that it expressly reserved its position on costs and/or wasted costs. That related not just to this preliminary hearing, but the whole proceedings, if instructed to make an application in due course.’[18]Unfortunately and not for the first time, Mr Ogbonmwan has completely misrepresented the discussion which actually took place. The result of that is that the Tribunal cannot rely upon anything Mr Ogbonmwan has to say. Mr Ogbonmwan referred to his character being attacked, but the reality is that he cannot be trusted to tell the truth.[19]Mr Cook set out the law as follows: The Law Costs Applications Against a Party
The Law
[20]The material provisions of the ET Rules 2013 governing costs applications are excerpted below: Rule 74. Definitions(1) “Costs” means fees, charges, disbursements or expenses incurred by or on behalf of the receiving party (including expenses that witnesses incur for the purpose of, or in connection with, attendance at a Tribunal hearing). […] Rule 75. Costs orders and preparation time orders (1) A costs order is an order that a party (“the paying party”) make a payment to— (a) another party (“the receiving party”) in respect of the costs that the receiving party has incurred while legally represented or while represented by a lay representative. […] Rule 76. Where a costs order or preparation time order may or shall be made (1) A Tribunal may make a costs order or a preparation time order, and shall consider whether to do so, where it considers that— (a) a party (or that party’s representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings (or part) or the way that the proceedings (or part) have been conducted; or (b) any claim or response had no reasonable prospect of success.(2) A Tribunal may also make such an order where a party has been in breach of any order or practice direction or where a hearing has been postponed or adjourned on the application of a party. Rule 77. Procedure A party may apply for a costs order or a preparation time order at any stage up to 28 days after the date on which the judgment finally determining the proceedings in respect of that party was sent to the parties. No such order may be made unless the paying party has had a reasonable opportunity to make representations (in writing or at a hearing, as the Tribunal may order) in response to the application. Rule 78. The amount of a costs order (1) A costs order may— (a) order the paying party to pay the receiving party a specified amount, not exceeding £20,000, in respect of the costs of the receiving party; (b) order the paying party to pay the receiving party the whole or a specified part of the costs of the receiving party, with the amount to be paid being determined, in England and Wales, by way of detailed assessment carried out either by a county court in accordance with the Civil Procedure Rules 1998, or by an Employment Judge applying the same principles; […](3) For the avoidance of doubt, the amount of a costs order under subparagraphs (b) to (e) of paragraph (1) may exceed £20,000. Rule 84. Ability to pay In deciding whether to make a costs, preparation time, or wasted costs order, and if so in what amount, the Tribunal may have regard to the paying party’s (or, where a wasted costs order is made, the representative’s) ability to pay.[21]When determining an application for costs, the ET should apply a threestage approach:a. Is the relevant jurisdictional threshold in rule 76 met?b. If so, should the ET exercise its discretion in favour of making a costs order?c. If so, what sum of costs should the ET order?[22]It is apparent from the wording of rule 76(1)(a) that a costs order may be made against a party when that party’s representative has acted, or conducted proceedings, “unreasonably” etc.[23]In Scott v Russell [2013] EWCA Civ 1432, the Court of Appeal cited with approval the following definition of “vexatious” conduct at §30: [T]he hallmark of a vexatious proceeding is … that it has little or no basis in law (or at least no discernible basis); that whatever the intention of the proceedings may be, its effect is to subject the defendant to inconvenience, harassment and expense out of all proportion to any gain likely to accrue to the claimant, and that it involves an abuse of the process of the court, meaning by that a use of the court process for a purpose or in a way which is significantly different from the ordinary and proper use of the court process.[24]For the purposes of rule 76(1)(a) the word “unreasonable” is to be given its ordinary English meaning and is not to be interpreted as meaning something similar to vexatious (Dyer v Secretary of State for Employment UKEAT/0183/83).[25]The ET should consider the nature, gravity and effect of the unreasonable etc conduct, but it is appropriate to avoid a formulaic approach and have regard to the totality of the relevant conduct. As Mummery LJ explained in Yerrakalva v Barnsley MBC [2012] ICR 420, CA at §41: The vital point in exercising the discretion to order costs is to look at the whole picture of what happened in the case and to ask whether there has been unreasonable conduct by the claimant in bringing and conducting the case and, in doing so, to identify the conduct, what was unreasonable about it and what effects it had […][26]It should, however, be noted that the ET is not confined to making an award limited to those costs caused by the unreasonable conduct. As Mummery LJ confirmed in McPherson v BNP Paribas (London Branch) [2004] ICR 1398, CA:39. Miss McCafferty submitted that her client's liability for the costs was limited, as a matter of the construction of rule 14, by a requirement that the costs in issue were "attributable to" specific instances of unreasonable conduct by him. She argued that the tribunal had misconstrued the rule and wrongly ordered payment of all the costs, irrespective of whether they were "attributable to" the unreasonable conduct in question or not. The costs awarded should be caused by, or at least be proportionate to, the particular conduct which has been identified as unreasonable.40. In my judgment, rule 14(1) does not impose any such causal requirement in the exercise of the discretion. The principle of relevance means that the tribunal must have regard to the nature, gravity and effect of the unreasonable conduct as factors relevant to the exercise of the discretion, but that is not the same as requiring BNP Paribas to prove that specific unreasonable conduct by the applicant caused particular costs to be incurred. As Mr Tatton-Brown pointed out, there is a significant contrast between the language of rule 14(1), which deals with costs generally, and the language of rule 14(4), which deals with an order in respect of the costs incurred "as a result of the postponement or adjournment". Further, the passages in the cases relied on by Miss McCafferty (Kovacs v Queen Mary and Westfield College [2002] ICR 919, para 35, Lodwick v Southwark London Borough Council [2004] ICR 884, paras 23-27, and Health Development Agency v Parish [2004] IRLR 550, paras 26-27) are not authority for the proposition that rule 14(1) limits the tribunal's discretion to those costs that are caused by or attributable to the unreasonable conduct of the applicant.41. In a related submission Miss McCafferty argued that the discretion could not be properly exercised to punish the applicant for unreasonable conduct. That is undoubtedly correct, if it means that the indemnity principle must apply to the award of costs. It is not, however, punitive and impermissible for a tribunal to order costs without confining them to the costs attributable to the unreasonable conduct. As I have explained, the unreasonable conduct is a precondition of the existence of the power to order costs and it is also a relevant factor to be taken into account in deciding whether to make an order for costs and the form of the order.[27]Mummery LJ did not resile from these observations in his later judgment in Yerrakalva, though His Lordship did emphasise in Yerrakalva that whilst the ET is not limited to awarding those costs incurred by the receiving party as a result of the paying party’s unreasonable conduct, the “effect” of the unreasonable conduct will often be a relevant factor in the ET’s exercise of its discretion.[28]A finding of unreasonable etc conduct is not necessary for a costs application to succeed under rule 76(2) ET Rules. It is sufficient, under rule 76(2), that the paying party is responsible for breaching the ET’s orders. Clearly, however, the explanation for breaching the ET’s orders may be a relevant factor at the discretionary stage in applications made under rule 76(2).[29]In circumstances where the ET finds that the jurisdictional threshold in rule 76 is met, the ET retains a broad discretion as to whether to make a costs order and the amount of any costs awarded. Whilst there is no closed list of factors relevant to the exercise of the ET’s discretion, the following factors are often relevant:a. Costs orders are intended to be compensatory, not punitive (Lodwick v Southwark LBC [2004] ICR 884, CA). Therefore, the extent of any causal link between the unreasonable etc conduct and the costs incurred will normally be a relevant discretionary factor (Yerrakalva), albeit there is no requirement to establish a causal link between the unreasonable conduct and the costs incurred before an order can be made (McPherson).b. The paying party’s ability to pay is a factor which the ET is entitled, but not obligated, to consider (see rule 84 ET Rules). Where regard is had to the paying party’s ability to pay, that factor should be balanced against the need to compensate the receiving party who has unreasonably been put to expense (Howman v Queen Elizabeth Hospital Kings Lynn UKEAT/0509/12).c. Any assessment or consideration of means need not be limited to the paying party’s means as at the date the order is made. It is sufficient that there is a “realistic prospect that [they] might at some point in the future be able to afford to pay” (Vaughan v London Borough of Lewisham [2013] IRLR 713, EAT).d. Where the ET does decide to take the paying party’s means into account, it must do so on the basis of sufficient evidence (for example by the paying party completing a county court form EX140) (Oni v NHS Leicester City UKEAT/0144/12).e. There is no requirement to limit costs to the amount the paying party can afford (Arrowsmith v Nottingham Trent University [2012] ICR 159, EAT).f. The ET may have regard to the means of a party’s spouse or other immediate family members (Abaya v Leeds Teaching Hospitals NHS Trust UKEAT/0258/16).g. Whether a party is legally represented may be a relevant factor. An unrepresented litigant may be afforded more latitude than a party who has the benefit of professional legal advice and representation (AQ Ltd v Holden [2012] IRLR 648, EAT).[30]Rule 78 specifies two bases upon which the ET may deal with assessment of costs when an application succeeds against a party:a. The ET may summarily assess costs up to a sum of no more than £20,000.b. The ET may order that the paying party pay the whole or a specified amount of the costs of the receiving party to be subject to detailed assessment either carried out in the county court or by an Employment Judge applying the same principles. This will likely be the appropriate course where the ET considers it appropriate to award costs in excess of the £20,000 summary assessment cap.[31]Where the ET considers it appropriate to order detailed assessment either in the county court or by an Employment Judge, the ET is entitled to place a cap on the amount of costs that may be awarded following detailed assessment (Kuwait Oil Company v Al-Tarkait [2021] ICR 718, CA). Wasted Costs Applications Against a Representative[32]The relevant provisions of the ET Rules governing wasted costs applications are as follows: Rule 80. When a wasted costs order may be made(1) A Tribunal may make a wasted costs order against a representative in favour of any party (“the receiving party”) where that party has incurred costs— (a) as a result of any improper, unreasonable or negligent act or omission on the part of the representative; or (b) which, in the light of any such act or omission occurring after they were incurred, the Tribunal considers it unreasonable to expect the receiving party to pay. Costs so incurred are described as “wasted costs”.(2) “Representative” means a party’s legal or other representative or any employee of such representative, but it does not include a representative who is not acting in pursuit of profit with regard to the proceedings. A person acting on a contingency or conditional fee arrangement is considered to be acting in pursuit of profit. […] Rule 81. Effect of a wasted costs order A wasted costs order may order the representative to pay the whole or part of any wasted costs of the receiving party, or disallow any wasted costs otherwise payable to the representative, including an order that the representative repay to its client any costs which have already been paid. The amount to be paid, disallowed or repaid must in each case be specified in the order. Rule 82. Procedure A wasted costs order may be made by the Tribunal on its own initiative or on the application of any party. A party may apply for a wasted costs order at any stage up to 28 days after the date on which the judgment finally determining the proceedings as against that party was sent to the parties. No such order shall be made unless the representative has had a reasonable opportunity to make representations (in writing or at a hearing, as the Tribunal may order) in response to the application or proposal. The Tribunal shall inform the representative’s client in writing of any proceedings under this rule and of any order made against the representative.[33]In accordance with rule 84, the ET is entitled, but not obligated, to consider a representative’s ability to pay a wasted costs order as part of exercising its discretion as to whether to make an order and if so in what amount.[34]The determination of an application for wasted costs requires consideration of a three-stage test. In Ratcliffe Duce and Gammer v Binns (t/a Parc Ferme) UKEAT/0100/08, the EAT, applying the Court of Appeal’s judgment in Ridehalgh v Horsefield [1994] Ch 205 identified the three elements of the test as follows:a. Has the representative acted improperly, unreasonably or negligently?b. If so, did that conduct cause the applicant to incur unnecessary costs?c. If so, is it just in the circumstances to order the representative to compensate the applicant for the whole or any part of the relevant costs?[35]In Ridehalgh, the Court of Appeal considered how the terms “improper”, “unreasonable” and “negligent” are to be construed in the context of wasted costs applications. At pp232-233 the Court of Appeal gave the following guidance:a. “Improper” conduct includes, but is not limited to, conduct which would ordinarily be held to justify disbarment, striking off, suspension from practice or other serious professional penalty.b. “Unreasonable” means conduct which is vexatious and/or designed to harass the other side rather than advance the resolution of the case. It makes no difference if the conduct is the product of excessive zeal rather than improper motive. The “acid test” is whether the conduct permits of a reasonable explanation.c. Negligent” should be understood in a non-technical way to denote failure to act with the competence reasonably to be expected of the (legal) profession.[36]The burden of proof in establishing improper, unreasonable and/or negligent conduct is on the party making the allegation (in this case R).[37]It is clear from the foregoing that there is a higher threshold for “unreasonable” conduct under rule 80 in comparison with rule 76. In the rule 76 context, “unreasonable” is to be given its ordinary English meaning (see Dyer above) whereas, in the context of rule 80, it is to be read as meaning something similar to vexatious.[38]In Ratcliffe, Elias J, as he then was, suggested that it is important for a Tribunal, when considering a wasted costs application, to distinguish between conduct which is an abuse of the Tribunal’s process (which may engage the wasted costs jurisdiction) and conduct which falls short of that threshold.[39]It is also important to draw the ET’s attention to the House of Lords case of Medcalf v Mardell [2003] 1 AC 120. In Medcalf, the House of Lords stressed that the wasted costs jurisdiction should be approached with caution and endorsed the Court of Appeal’s observations in Ridehalgh about the gravity of the conduct required to engage the jurisdiction. The House of Lords also noted that where there is or may be relevant privileged material which cannot be deployed by a representative in response to a wasted costs application, courts must approach a wasted costs application with particular care. If any doubt is raised due to the existence of potentially relevant privileged material which cannot be placed before the court, the court must give the respondent to the application the benefit of that doubt in reaching its decision (Medcalf at eg §§60-61).[40]Lord Bingham explained the approach to be adopted where issues of privilege arise in the following way at §23 of Medcalf: Even if the court were able properly to be sure that the practitioner could have no answer to the substantive complaint, it could not fairly make an order unless satisfied that nothing could be said to influence the exercise of its discretion. Only exceptionally could these exacting conditions be satisfied. Where a wasted costs order is sought against a practitioner precluded by legal professional privilege from giving his full answer to the application, the court should not make an order unless, proceeding with extreme care, it is(a) satisfied that there is nothing the practitioner could say, if unconstrained, to resist the order and(b) that it is in all the circumstances fair to make the order.[41]The wasted costs jurisdiction is not limited to representatives who are practising solicitors or barristers or otherwise legally qualified. It is clear from the words “other representative” in rule 80(2) that a wasted costs order can be made against a lay representative. However, per rule 80(2), a wasted costs order cannot be made in circumstances where a representative is “not acting in pursuit of profit”. The rule expressly states that acting on a conditional fee basis will amount to acting in pursuit of profit. However, where a representative is acting pro bono, a wasted costs order cannot be made (see Jackson v Cambridgeshire County Council UKEAT/0402/09).[42]The wasted costs jurisdiction also requires a different approach to causation than a costs application made against a party. In a costs application against a party, the ET may consider causation as part of the exercise of its discretion, but is not required to strictly apply principles of causation (see McPherson above). However, in the wasted costs jurisdiction, it is a necessary precondition of an application succeeding that the ET must find that costs were incurred due to the improper, unreasonable and/or negligent conduct of the representative. As Langstaff P explained in Hafiz & Haque Solicitors v Mullick and anor [2015] ICR 1085, EAT at §15: Mr Cohen argues that it would be unfortunate if, in applying the wording of Rule 80, I were to conclude that there was a causative requirement to be met when this would not be the case in the general costs rule. I cannot accept that submission. The Rule says what it states. It is a different rule from the general costs rule. It clearly requires that the costs which are to be indemnified were incurred as a result of the conduct complained of. The conduct itself need not, it seems to be (sic), be identified with such specificity that it can be said that this particular aspect of improper conduct caused this particular loss. To that extent, I adopt the general approach in respect of what is another rule from another set of rules considered by the Court of Appeal in McPherson v BNP Paribas, but it seems to me it is not for me to ignore the precise wording which is used, which is in contradistinction to the absence of any such wording in Rule 76.[43]Where a wasted costs order is made, the order must specify the amount to be paid (rule 81). However, it should be noted that, in contrast to the position in respect of applications against parties in rule 78, the ET cannot order that there be a detailed assessment of wasted costs in the county court. Under rule 81, the ET must itself undertake an assessment of the wasted costs to be ordered and stipulate the amount to be paid (Casqueiro (in a Matter of Wasted Costs) v Barclays Bank Plc UKEAT/0085/12 at §10).[44]Moving on from Mr Cook’s statement of the law, recently, the EAT has said the following in respect of costs under Rule 76 starting at paragraph 8 in B.L.I.S.S Residential Care Ltd v Fellows EA-2022-000068-AT: 8. If one of the thresholds for making a costs order is reached the employment tribunal still has a discretion to exercise in deciding whether to award costs, and if so, in what sum. 9. In considering an application for costs the employment tribunal should bear in mind that it is generally a costs free jurisdiction: Gee v Shell Limited [2003] IRLR 82. Where a party considers that a claim or response is misconceived, a costs warning letter may be sent. There is no obligation to do so and a failure to do so does not prevent the employment tribunal making a costs order. However, the failure to do so is a matter that the employment tribunal may take into account in deciding whether to award costs, or in fixing the amount of an award. The respondent did not send the claimant a costs warning letter in the employment tribunal. 10. [set out Rule 84] 11. The employment tribunal is empowered to consider the paying party's ability to pay, but is not required to do so. If the employment tribunal exercises the discretion to disregard the paying party’s ability to pay it should generally give reasons: Jilley v Birmingham and Solihull Mental Health NHS Trust and others UKEAT/0584/06 at paragraph 44. In considering ability to pay the employment tribunal is entitled to have regard to the likelihood that a person’s financial circumstances may improve in the future: Chadburn v Doncaster & Bassetlaw Hospital NHS Foundation Trust UKEAT/0259/14/LA. This can include the possibility that money will be received from a third party. The respondent’s application[45]In summary the respondent’s application was focused upon a costs award against the claimant and for those costs to be subject to detailed assessed by an Employment Judge (rather than referring the assessment to the County Court). One reason was that there was a lower threshold for the costs application against the claimant, than wasted costs against her representative. Mr Cook also acknowledged the difficulty in that unless the claimant waived privilege, Mr Ogbonmwan may be restrained due to litigation privilege from explaining his actions; i.e. he may have behaved in the manner in which he did, due to his instructions from the claimant.[46]Mr Cook then went through the incidents which he submitted engaged the cost jurisdiction. The first was submitting four lengthy emails in the early hours of the morning prior to the Interim Relief hearing. The claimant was not well prepared for that hearing and applied for a postponement. Mr Ogbonmwan sent through approximately 120 unindexed pages and then did not refer to them in the course of the hearing. It was submitted it was unreasonable conduct to send such a large quantity of irrelevant material and then not to refer to it.[47]The next issue was the reconsideration application in respect of the outcome of the Interim Relief application on 27/1/2021. That application was not copied to the respondent and that was rectified on the 3/2/2021. That application made serious allegations, without foundation. Mr Ogbonmwan referred to the Employment Judge’s decision being indirectly discriminatory under the Equality Act 2010, referred to unlawful and biased judgment, failing to apply the correct test and premeditation and prejudicial bias.[48]Not only that, Mr Ogbonmwan made allegations regarding the respondent’s then counsel (not Mr Cook) in a further application made on the 5/4/2021 (copied to the claimant with the result that she aware of the approach Mr Ogbonmwan had taken). That application referred to the respondent’s ‘false defence’ and to obtaining a judgment by fraud or fraudulent misrepresentation and that counsel had mislead the Employment Judge for ‘financial gain’.[49]Mr Cook characterised this as a disgraceful application which amounted to it being abusive and improper allegations against a regulated professional, made for collateral purposes to harass the respondent and its representatives; rather than having any expectation the application would succeed.[50]The respondent sent a costs warning letter to Mr Ogbonmwan on 23/4/2021. That letter referenced the allegations against counsel and make the point that there was no credible basis for those allegations, other than to seek leverage in settlement negotiations. That letter offered a ‘drop hands’ settlement offer. The claimant was warned, that she risked a costs application if she proceeded in her claim and its aim was to encourage a proportionate response. In fact, the conduct of the claim worsened.[51]A preliminary hearing had been listed for 7/4/2021 and two days before that, Mr Ogbonmwan filed three copies of further and better particulars, without setting what, if any differences there were. The result was that the particulars of claim ran to 95-pages of incoherent detail which did nothing to advance or explain what exactly the claimant’s claims against the respondent were based upon. This incurred unnecessary costs for the respondent in it attempting to ascertain what the claim(s) against it was.[52]Six weeks late and not in compliance with the Order (and despite reminders from the respondent) Mr Ogbonmwan attempted to comply with the Order. This was a breach of the Order and unlike Rule 75(1), under Rule 76(2), there is no requirement of unreasonable conduct. The claimant was in breach of the Order, whether or not that breach was itself unreasonable.[53]The claimant made a strike out application on 2/9/2021 which repeated the abusive and vexatious allegations against counsel. Mr Ogbonmwan referred to ‘unreasonable, criminal acts and vexatious behaviours, particular having aided and abetted race discrimination during the the course of the litigation’. The paragraph went onto refer to ‘unreasonable criminal’ behaviour, despite (it was said) the claimant being unrepresented at the time; whereas, in fact the claimant was represented by Mr Ogbonmwan from the time her first claim form was presented on 28/9/2020. Although Mr Ogbonmwan was not identified as the claimant’s representative in respect of the second claim (presented on 15/10/2020). The notice of the Interim Relief hearing in the second claim was sent to the claimant and she was represented at that hearing on 6/1/2021 by Mr Ogbonmwan. Mr Ogbonmwan was thereafter treated as the claimant’s representative.[54]The claimant was directed at the preliminary hearing on 9/4/2021, if she wished made any additions or alterations to her pleadings, to do so by means of tracking by the 18/7/2921. The claimant did not do so and instead, in breach of the Order, provided 50-pages without track changes.[55]In response to a draft hearing bundle sent to Mr Ogbonmwan and after being asked for any additional documents by the 1/10/2021, Mr Ogbonmwan sent 251-pages, contained in three emails and without an index on 5/10/2021. The additional documents were either duplicates or not relevant.[56]The final conduct issue which Mr Cook seeks to rely upon was Mr Ogbonmwan’s conduct at the preliminary hearing on 7/10/2021 and 8/10/2021. The day before the hearing, Mr Ogbonmwan sent a document titled: ‘Schedule of fraud, fraudulent misrepresentation aiding and abetting to disrepute legal obligations related to respondent’s counsel’s fraud and respondent’s witness statement [Wendy Edward] to be heard 7-8 October 2021’[57]The document then went onto refer to a 1999 film The General’s Daughter. Besides that reference was bizarre, unreasonable and only served to incur further costs for the respondent; it also repeated serious allegations. An example being the respondent ‘manufacturing of evidence and falsifying records to plant in the mind of a third party tainted image of that attempted to disrepute the [claimant]…’[58]Finally, Mr Cook referred to the findings of fact made in the written reasons further to the hearing on 7/10/2021 and 8/10/2021.[59]Mr Cook also referred to Mr Ogbonmwan’s suggestion that a document he (Mr Ogbonmwan) had produced and which did not comply with the Tribunal’s Order, had been tampered with by the respondent or its representative. Other that this bald allegation, there was no other substantiation by Mr Ogbonmwan.[60]Mr Cook submitted that if the jurisdiction threshold was met, Mr Ogbonmwan’s conduct was such that it engaged Rule 76(1) and(2) and that it did so for essentially the same reasons was when the claim was struck out. That is notwithstanding that it may not have been the claimant herself who was guilty of the culpable conduct. There was no escape that Mr Ogbonmwan behaved in such a way which engaged the threshold.[61]Mr Cook pointed out that an award of costs is at the discretion of the Tribunal, however he invited the Tribunal to exercise its discretion in the respondent’s favour.[62]Mr Cook went on to address the ability to pay and the nature, gravity and effect of the unreasonable conduct as factors relevant to the exercise of the Tribunal’s discretion.[63]In respect of ability to pay, Rule 84 requires the Tribunal to have regard to it, but it is not required to do so. The claimant was directed on the 7/12/2022 to provide evidence in respect of her ability to pay. She confirmed she had seen the direction but had not complied with it. The claimant was reminded of the direction by the respondent. There was no engagement by the claimant, other than her attendance at the hearing. There was therefore no evidential basis of the claimant’s ability to pay or otherwise.[64]The only evidence there was, was from the respondent, which was the Official copy of register of title from HM Land Registry. This related to a property owned by the claimant and her husband. The property was purchased on 19/2/2016 for £494,995. Mr Cook submitted that in the absence of any other evidence, that it is fair to assume the property has increased in value in the intervening seven years and that should be reflected is and when taking into account ability to pay.[65]In respect of the effect of the conduct, Mr Cook submitted that from the time the claim was first presented and then at all stages up to and including the strike out, the case was conducted unreasonably, vexatiously and pursued to harass and cause maximum convenience to the respondent. There was no legitimate interest in the claimant pursuing her claims and there was a thread of unreasonable conduct, such that the Tribunal is invited to exercise its discretion to order the claimant to pay the entirety of the respondent’s costs.[66]That was the respondent’s primary position, with the detailed assessment being carried out by an Employment Judge. It was submitted that there was little to be gained by transferring the assessment to the County Court. The respondent also said costs can be summarily assessed to the cap of £20,000. The costs claimed of just over £66,000 (excluding vat) were surprising low, considering there had been an Interim Relief hearing, two preliminary hearings over three days, lengthy pleadings, unparticularised further particulars and time engaged dealing with vexatious applications.[67]In the alternative to the respondent’s primary position that the claimant should be ordered to pay its costs in full, the respondent seeks wasted costs against Mr Ogbonmwan. It does not seek double recovery.[68]Conduct for which Mr Ogbonmwan is liable for wasted costs is said to be: the reconsideration of the Interim Relief outcome; the strike out application of the 5/4/2021 which made serious allegations as leverage to obtain an enhanced settlement; repetition of those allegations in the strike out application of August 2021; the correspondence of 6/10/2021 containing allegations of fraud; and the conduct at the October 2021 preliminary hearing which led to the claim being struck out.[69]In respect of wasted costs, Mr Cook referred to the different approach to causation, than in respect of a costs application against a party. The Tribunal must find that the costs were incurred as a result of the improper, unreasonable and/or negligent conduct of the representative.[70]The final point was that it would be just to make a wasted costs order against Mr Ogbonmwan. Although he is a lay representative, that does not mean he can act with impunity and disregard the expected standards of behaviour. Mr Ogbonmwan is recorded as acting as a lay representative as shown by a perusal of past decisions. Lastly, Mr Ogbonmwan also did not provide any evidence of his ability to pay any costs ordered against him.[71]In response to the application, it was taken as the claimant’s and Mr Ogbonmwan’s position that the Tribunal should reject the respondent’s application.[72]Mr Ogbonmwan said that he did not have the documentation, although he accepted the respondent had sent it. Mr Ogbonmwan saw the respondent’s application as an attack on his character and he objected to this. Mr Ogbonmwan repeated his allegation that to not allow the claimant’s claim to proceed was racist. He said that he had not acted irresponsibly and that he was a man of good character.[73]Unfortunately and puzzlingly, Mr Ogbonmwan then went onto make reference to the Second World War and to the compassion of the British people. He was informed that this did not assist the Tribunal in the issue it had to determine and he was asked to address the issue, which was whether or not he should be liable for wasted costs.[74]Mr Ogbonmwan repeated his allegations against the respondent’s former counsel and then referenced Boris Johnson and other Judges he claimed were biased. Again, he was asked to respond to the salient point.[75]As Mr Ogbonmwan did no do so, he was asked if it was a fair summary to say the respondent’s application should be rejected and that he did not accept what the respondent had said about his conduct. Mr Ogbonmwan said he had acted as a friend to the claimant and had done so to the best of his knowledge. He then referred to the video evidence which the claimant had relied upon and as his comments were not relevant, the Tribunal moved onto hearing from the claimant.[76]The claimant said that she had not responded to the Tribunal’s directions. She said she engaged a lawyer to assist her, but he had recently passed away. She referred to her health and her personal circumstances. She was understandably upset.
Conclusions
[77]If Mr Ogbonmwan could not access the documentation, it was up to him to notify the respondent of that and to seek assistance. That Mr Ogbonmwan did not do so until less than one working day before the hearing is down to him. Mr Ogbonmwan was capable of sending lengthy documents to the respondent in the early hours before a hearing and expected the respondent to be able to process that documentation. He was equally capable of requesting an accessible copy of the bundle, if indeed it was the case that he could not access the bundle which was sent it him.[78]At all previous hearings and up until 9/6/2022 Mr Ogbonmwan was the claimant’s representative.[79]Mr Ogbonmwan’s conduct was unreasonable. It was unreasonable at this hearing. He further demonstrated disregard for standards of reasonable behaviour. He repeated scurrilous and unfounded allegations. Mr Ogbonmwan had not complied with the Tribunal’s Orders. The claimant had similarly failed to comply with Orders and was in breach of it.[80]In respect of the costs application against the claimant, she had, via her representative Mr Ogbonmwan acted unreasonably and vexatiously. Mr Ogbonmwan had not advanced the claimant’s case and he had ‘harassed’ the respondent in the sense referred to in Scott v Russell [2013] EWCA Civ 1432. His conduct was unreasonable in that not only did he bombard the respondent with documentation at the last minute, that was compounded by his failure to comply with Orders of the Tribunal. He also made and continued to make damning and serious allegations, without foundation.[81]Although Mr Obgonmwan is a law representative, he is not inexperienced. For example, he made an Interim Relief application for the claimant on 15/10/2020. He cannot however act with impunity.[82]Following the Interim Relief hearing, an Order for directions was made. That included a reference to Rule 6 which states: Irregularities and non-compliance A failure to comply with any provision of these Rules (except rule 8(1), 16(1), 23 or 25) or any order of the Tribunal (except for an order under rules 38 or 39) does not of itself render void the proceedings or any step taken in the proceedings. In the case of such non-compliance, the Tribunal may take such action as it considers just, which may include all or any of the following—(a) waiving or varying the requirement;(b) striking out the claim or the response, in whole or in part, in accordance with rule 37;(c) barring or restricting a party's participation in the proceedings;(d) awarding costs in accordance with rules 74 to 84. [emphasis added][83]That was followed by a preliminary hearing on 9/4/2021 and the written outcome of that hearing contained paragraph 7.6 which read: Under rule 6, if any of the above orders is not complied with, the Tribunal may take such action as it considers just which may include:(a) waiving or varying the requirement;(b) striking out the claim or the response, in whole or in part, in accordance with rule 37;(c) barring or restricting a party’s participation in the proceedings; and/or(d) awarding costs in accordance with rule 74-[84][the original was in bold font] 84. On the 23/4/2021 the respondent sent a without prejudice save as to costs letter. That letter did address the merits of the claimant’s claims and considered them to be weak. The letter also referred to the conduct of the proceedings. Criticisms included the repetitive and voluminous pleadings, lack of response to reasonable requests, lack of preparation for the Interim Relief hearing (the hearing did not start at 10am as Mr Obgonmwan was not prepared), sending substantial documents in the early hours prior to the hearing, which were not then referred to, the lack of merit of the Interim Relief hearing itself and serving three different versions of a 51- page documents two days before the preliminary hearing, without identifying the differences. There was then a costs warning. At this stage, the costs warning focused on the weakness of the claimant’s claims, rather than the conduct of them.[85]In applying the three stage test as set out above, the Tribunal is satisfied the conduct of the proceedings by Mr Obgonmwan substantially crosses the threshold so as to engage the jurisdiction under Rule 76.[86]The next question therefore is should the Tribunal exercise its discretion to award costs? The Tribunal finds Mr Obgonmwan’s conduct was extreme and continued over a sustained period of time, despite warnings from the respondent and from the Tribunal itself. As such, it is correct that the Tribunal should exercise its discretion.[87]The next consideration is the sum which should be awarded. The Tribunal may have regard to the paying party’s ability to pay.[88]In the absence of any evidence of her ability to pay and in breach of the Tribunal’s Order; all the Tribunal has to go on is the evidence provided by the respondent. Even allowing that there is a charge or mortgage over the claimant’s property, it is assumed that there is considerable equity in the property. She therefore has the means to pay any costs awarded.[89]The respondent contends that the claimant should pay its costs in full. The Tribunal declines to award the respondent’s full costs. Although the costs warning letter focused on the merits of the claims, this costs application related to the conduct of the proceedings. The respondent would have had to incur some costs in defending the claim and in making the assessment regarding the merits. The strike out application was made based upon the conduct of Mr Obgonmwan and his failure to comply with the Tribunal’s Orders. It is however accepted that the respondent will have incurred additional costs due to the manner in which the claim was conducted.[90]The Tribunal has also given consideration to the fact that costs are compensatory and not punitive.[91]In order to compensate the respondent and not to punish the claimant, the Tribunal awards the claimant to pay to the respondent costs in the sum of £20,000. This is considered to be a proportionate sum to compensate the respondent and as it does not involve detailed assessment, in accordance with the overriding objective, it avoids any further delay.[92]In respect of the wasted costs application against Mr Obgonmwan, the Tribunal would have no hesitation in considering his conduct to be unreasonable and under Rule 80, unreasonable is akin to vexatious. Similarly, the Tribunal has no hesitation in concluding that conduct caused the respondent to incur additional costs. It is the third limb of the test referred to above which causes the Tribunal to pause. Is it just in the circumstances to order Mr Obgonmwan to compensate the respondent for some of its costs?[93]The issue which causes concern is that identified by Mr Cook of litigation privilege. Had the claimant waived privilege (she said she had taken further legal advice) the outcome may have been different. As she has not waived privilege, it is not clear whether or not Mr Obgonmwan was acting in accordance with her instructions or not. In those circumstances, the Tribunal has to give Mr Obgonmwan the benefit of the doubt.[94]Furthermore, it was not clear whether or not Mr Obgonmwan was acting in pursuit of profit or not. As with all other preparation, neither the claimant nor Mr Obgonmwan came prepared to address that issue.[95]To conclude, although Mr Obgonmwan’s conduct brings him within the first two limbs of the test to be applied when considering awarding wasted costs, the Tribunal is not satisfied, due to litigation privilege, that it is just to order Mr Obgonmwan to compensate the respondent.[96]For those reasons, the costs application against the claimant succeeds and she is ordered to pay to the respondent the sum of £20,000. The wasted costs application against Mr Obgonmwan fails and is dismissed. 14/6/2023
Conclusions
[1]By consent, all complaints in case number 2306525/2020 except for the complaint of automatically unfair dismissal are struck out under Employment Tribunal Rule 38(1)(a) as they have no reasonable prospect of success, being duplicates of the complaints in case number 2305977/2025.[2]The claims in case numbers 2305977/2020 and 2306525/2020 are struck outa. under Employment Tribunal Rule 38(1)(b) because the manner in which the proceedings have been conducted has been unreasonable.b. under Employment Tribunal Rule 38(1)(c) because of non-compliance with an order of the Tribunal.c. under Employment Tribunal Rule 38(1)(e) because it is no longer possible to have a fair hearing in respect of them. Costs order[3]The claimant’s application for reconsideration of the judgment of the costs order made on 5th June 2023 is refused.
Introduction
[1]The claimant brought two claims in September and October 2020. I set out more details of its history below but for various reasons there is still no clarity on the exact claims. The cases were struck out in October 2021 but that decision was overturned by the EAT on appeal and the cases remitted to the Tribunal. A case management hearing in October 2024 made little progress on the issues and the claimant was given the opportunity to clarify her claims.[2]The judge conducting the October 2024 hearing set a two day public preliminary hearing for 28 and 29 April 2025 to consider:a. clarification of the issues;b. case management for the next hearing;c. any application for strike out by the respondent[3]That hearing was subsequently postponed and rearranged to 6 and 7 November 2025. I reserved judgment at that hearing and this judgment contains my decision on the matters discussed and the reasons for them.[4]The hearing was attended by Mr Emezie as the claimant’s representative as well as on the first day the claimant herself. Mr Cook represented the respondent, together with Ms Annie Drew from the respondent’s solicitors and (again on the first day) Ms Linda Dodd from the respondent.[5]Both the claimant and Ms Dodd provided witness statements. Mr Emezie objected to Ms Dodd’s witness statement being allowed as there was not specific provision for it in the case management order from the October 2024 hearing. The witness statement covered the respondent’s contact with its witnesses for a final hearing and I considered this useful in considering whether a fair trial was still possible. The claimant had had the statement since early this year and I could not see any prejudice to the claimant in accepting it. I therefore decided it was in the interest of justice and in accordance with the overriding objective to allow Ms Dodd’s witness statement to be considered. As a result, both the claimant and Ms Dodd gave evidence.[6]I was provided with a bundle running to 781 pages, speaking notes from Mr Emezie and a file note from an interim relief hearing in 2021. I did not read the entire bundle but viewed documents to which I was directed.[7]Most of the hearing was spent considering a new strike out application brought by the respondent. We also considered a request from the claimant that a costs order against her be reconsidered. This request was refused and oral reasons given at the time. The claimant has subsequently requested written reasons for that decision and I have these out later in this judgment.[8]We also discussed whether the claimant would consider limiting her claim to a small number of the most important events or treatments. Mr Emezie obtained confirmation that the claimant agreed to this approach. I agreed to delay preparing my decision on strike out to allow any proposals to that effect to be presented. By a letter dated 13 November 2025, her representatives (Chipasto LLP) confirmed “that the Claimant’s case will be limited to the following claims: Direct and indirect race discrimination Harassment related to race and sex Victimisation Sexual assaults Unlawful deductions/arrears of pay (including notice and holiday pay); and Automatic unfair dismissal.” The letter contained no specific proposals for limiting the number of events or treatments to be relied on nor did it specify any. I will return to this letter later in this judgment.
Background
[9]The claimant has brought two claims, the first on 28 September 2020 which is claim number 2305977/2020 (“the first claim”) and the second on 15 October 2020 under claim number 2306525/2020 (“the second claim”). The claims appear to be for race and sex harassment, whistleblowing detriment and automatically unfair dismissal. However, the claim forms are lengthy, and the exact allegations and issues are not clear.[10]The Grounds of Claim attached to the first claim runs to approximately 45 pages. It was noted in a previous hearing that it appears to contain several separate documents which have been merged together, there is a repeat of paragraph numbers throughout. The first claim contains a very large number of allegations, but it is difficult to ascertain the factual and legal allegations.[11]At the time of submission of the ET1 for the two claims, and in the previous preliminary hearings prior to October 2024, the claimant was represented by Howard Ogbonmwan. It is understood that Mr. Ogbonmwan was a lay representative, and not legally qualified.[12]The second claim did not have an attachment submitted with it, and the ET1 provides little detail. The ET1 was considered an application for interim relief, and a hearing took place to consider the interim relief application before Employment Judge Andrews on 6 January 2021. Employment Judge Andrews dismissed the application for interim relief and gave reasons orally at the hearing.[13]On 7 April 2021 the Claimant filed a document called “further and better particulars”. This document runs to approximately 50 pages, single spaced in a small size font. This did not clarify matters.[14]A case management preliminary hearing was conducted by Employment Judge Truscott KC on 9 April 2021. At that hearing it was ordered that a public preliminary hearing take place to consider:a. Whether the Tribunal has jurisdiction to entertain the Claimant’s second claim, alternatively whether it ought to be struck out because it has no reasonable prospect of success.b. Whether the ET3 for the Respondent should be struck out.c. To address any application to amend the ET1 by the Claimantd. To identify the issues for the main hearing, ande. List the main hearing and make any further case management orders.[15]Employment Judge Wright conducted that public preliminary hearing on 7 and 8 October 2021. It is recorded that an attempt was made to clarify the issues, but that the claimant’s former representative would not engage. At the hearing Employment Judge Wright struck out the claims on the basis that the manner in which the proceedings had been conducted was scandalous, unreasonable or vexatious and there had been non-compliance with a Tribunal Order. The application and the decision centred around the behaviour of Mr Ogbonmwan.[16]A costs hearing took place in front of Employment Judge Wright on 5 June 2023. The claimant was ordered to pay the respondent £20,000. The respondent did not appeal that decision or ask for reconsideration within the permitted 14 day time period.[17]At a hearing in the Employment Appeal Tribunal on 16 July 2024 the claimant successfully appealed the decision to strike out the claims. The Employment Appeal Tribunal remitted the matter back to the Employment Tribunal to be considered by a different judge. The basis on which the appeal succeeded was essentially procedural, that the claimant was given insufficient notice of the strike out application.[18]The claimant subsequently obtained new representation, instructing Mr Emezie in place of Mr Ogbonmwan.[19]A further preliminary hearing took place on 4 October 2024 before Employment Judge Cawthray, with the purpose of that hearing being to discuss next steps. In essence, the tribunal was back to where things were at the preliminary hearing in October 2021.[20]At that hearing little progress was made in clarifying the issues. Mr. Emezie asked that the claimant should be given the opportunity to clarify her claim now that she has appointed legal representation. There was some discussion as to how long was required for the final hearing. The respondent had postulated a period up to 20 days, Mr Emezie said that when clarified he thinks the final hearing will need 5 days, but that even as drafted it would take 10. The claimant was given until 15 November 2024 to submit a further and better particulars of claim, the case management order stating: This document is intended to give the Claimant a chance to clarify her claim – both factually and legally. The document must refer in square brackets, to the paragraph number, the page number and the first three words of each sentence. This is necessary due to the confusing format of the Particulars of Claim for the first claim, which duplicates paragraph numbers and seems to merge several documents An amended document was subsequently submitted but this did little more than make numbering and grammatical changes.[21]The case management orders also required the claimant by the same date to make any application she wanted to make in relation to the costs order made on 5 June 2023. The claimant subsequently applied on 15 November 2024 for reconsideration of this order. This was considered by Employment Judge Wright on 10 December 2024, who refused the application, stating that “The claimant’s application of the 15/11/2024 to ‘revoke’ the costs order of the 5/6/2023 is refused. The claimant does not cite any basis in the Rules for its application. The costs order dealt with conduct other than that which lead to the claim being struck out (overturned on appeal). In any event, the application is out of time.”[22]The claimant asked for written reasons for this decision but these were contained in the letter of 10 December 2024. She later made a further application for reconsideration; the tribunal responded on 14 January 2025 as follows: “The claimant’s email of the 11/12/2024 and the respondent’s email of the 13/12/2024 have been referred to Employment Judge Wright. Both emails refer to the claimant’s application of the 15/11/2024 to ‘revoke’ the costs Order made on 5/6/2023, the outcome of which was notified to the parties on the 10/12/2024. Notwithstanding that the previous decision was in effect a reconsideration of the costs Order previously made; the claimant’s latest application is refused as there is no prospect of the Order being varied or revoked.”[23]This application was revived again by the claimant and considered by me and rejected by me in an oral judgment at the hearing. Written reasons for my decision are given later in this judgment.[24]The respondent was required to make any new strike out application it wished to make by 13 December 2024. This was received and was considered at the hearing before me. My decision on that application and my reasons for it are set out below.[25]As referred to above, a two day public preliminary hearing was listed to consider the issues in the case, set the timetable going forward and to consider the strike out applications. This was initially listed for 28 and 29 April 2025 but subsequently moved to 6 and 7 November 2025. Strike out application[26]The respondent made its strike out application on 13 December 2024. The claimant filed a response and provided speaking notes at the hearing. Both parties made submissions at the hearing, having had the opportunity to examine both witnesses. I am satisfied that a fair process for making and considering the application was followed.[27]The application is essentially in two parts, an application to strike out both cases in their entirety and secondly an application to strike out the second claim apart from the claim for automatically unfair dismissal.[28]The claimant opposed the first claim but agreed that the second claim was, other than the claim for automatically unfair dismissal, a duplication of the first claim. It was therefore agreed that the second claim should be struck out apart from the claim for automatically unfair dismissal.[29]The respondent applies for both claims to be struck out pursuant to Rules 38(1)(b), (c) and (e) of the Employment Tribunal Procedure Rules 2024 (the “Rules”). These relate to (b) the conduct of the proceedings in a scandalous, unreasonable and/or vexatious manner, (c) non-compliance with an order of the tribunal and (e) that it is no longer possible to have a fair hearing. I set out a summary of the arguments advanced and the claimant’s response for each element in turn. Rule 38(1)(b)[30]The respondent set out examples of the manner in which the claimant’s then representative had conducted the litigation and argued this was scandalous, unreasonable and vexatious; these led to the earlier strike out and a substantial costs order. They argued that this conduct was done in the claimant’s name and the facts prevent any rebuttal to the contrary; she was copied in on much of the correspondence and was often present when her representative behaved in an unacceptable manner.[31]In addition, Mr Cook argued that the claimant’s conduct continued to be unreasonable, citing the example of the further and better particulars produced after the October 2024 hearing which disregarded the clear instructions given by Employment Judge Cawthray and did nothing to clarify or streamline the claims.[32]The claimant argues that a party should not be penalised for the failings of a representative unless it renders fair trial impossible. Mr Ogbonmwan has been replaced and Mr Emezie argues that the claimant had no involvement in or knowledge of his misconduct. He points to her witness statement and evidence where she confirms she did not authorise any excessive, irrelevant or inappropriate correspondence or allegations and was not aware of the full extent of his conduct until the costs hearing in June 2023. The conduct of Mr Ogbonmwan is irrelevant following the EAT decision. Rule 38(1)(c)[33]The respondent sets out breaches that occurred prior to the October 2021 hearing. More reliance is placed on the failure to clarify the claims pursuant to the October 2024 case management orders. Despite the predictions that following the clarifications the case would be suitable for a five day final hearing, the claimant has again failed to clarify the claims, leaving the respondent no clearer as to their scope.[34]The claimant denies there has been non-compliance and says that the further and better particulars produced after the October 2024 hearing complied with the directions given; Mr Emezie argued that this required reformatting only. Rule 38(1)(e)[35]The respondent says that strike out on this ground applies even in cases where the party against whom strike out is sought has done nothing wrong, citing the decision in Leeks v University College London Hospitals NHS Foundation Trust [2024] EAT 134. Mr Cook contended that five years have already passed and a final hearing date has not been listed. He pointed to the evidence of Ms Dodd as showing that many potential witnesses had expressed concern at recollecting events that will have occurred long ago by the time the cases reach a final hearing.[36]The claimant argues that strike out in discrimination cases should be a last resort and argues that a fair trial is still possible, based on the number of respondent witnesses who have expressed a willingness to take part in a final hearing (only one has refused and one cannot be traced, out of 11 potential witnesses). They can use contemporaneous notes to remind themselves of the position. Any delay has arisen from the respondent pursuing strike out applications and it should have obtained witness statements earlier. Rules and law I will next turn to the relevant rules and law.[38]The test for strike out is set out in rule 38 of the Rules:(1) The Tribunal may, on its own initiative or on the application of a party, strike out all or part of a claim or response on any of the following grounds— (a) that it is scandalous or vexatious or has no reasonable prospect of success; (b) that the manner in which the proceedings have been conducted by or on behalf of the claimant or the respondent (as the case may be) has been scandalous, unreasonable or vexatious; (c) for non-compliance with any of these Rules or with an order of the Tribunal; (d) that it has not been actively pursued; (e) that the Tribunal considers that it is no longer possible to have a fair hearing in respect of the claim or response (or the part to be struck out).(2) A claim or response may not be struck out unless the party in question has been given a reasonable opportunity to make representations, either in writing or, if requested by the party, at a hearing.[39]The principles concerning strike out are well known and clear. The power to strike out is a draconian power and should not be readily exercised. Where the central facts are in dispute, only in an exceptional case will an application be struck out as having no reasonable prospect of success without a full hearing of the evidence. This is not relevant here where the application is on different grounds.[40]Where strike out is considered on conduct grounds, as is the case here, the EAT suggested a three part test in the case of Bolch v Chipman [2024] IRLR 140 as follows:a. Is the relevant jurisdictional threshold in rule 38(1) satisfied?b. If so, is a fair trial possible?c. Would a lesser sanction be more appropriate?[41]Guidance of whether a fair trial is possible is provided in the case of Emuemukoro v Croma Vigilant (Scotland) Limited [2022] ICR 327, which Mr Cook referred to. In determining whether a fair trial is possible, the tribunal should have regard to factors such as the proportionate expenditure of time and costs, the fair allocation of limited tribunal resources and the impact of the proceedings upon other litigants. Tribunal consideration[42]I begin my consideration by looking at the claimant’s conduct.[43]Mr Emezie argued that the respondent could not bring conduct arguments in relation to Mr Ogbonmwan as this was prevented by the EAT judgment and to do so amounted to an abuse of process. I do not agree with this argument. The EAT accepted the appeal on the basis that insufficient notice was given; they did not state that strike out as a result of the conduct of Mr Ogbonmwan was rejected. I find nothing in the respondent’s application that amounts to an abuse of process.[44]However, the EAT suggest in paragraph 50 of their decision that the change of representation may have an impact on the prospects of success of any argument that his conduct renders no fair hearing possible. I do agree with that suggestion. Having changed representation, the conduct of Mr Ogbonmwan itself is not a ground to strike out the cases.[45]Where that conduct may be relevant is whether it was made with the authority of the claimant. I have read her witness statement and listened to her answers when cross-examined by Mr Cook. She argued that she had no experience of litigation and so did not know what was appropriate or inappropriate behaviour. She also said that she will ill when Mr Ogbonmwan was conducting the case on her behalf; no medical evidence to support this contention was provided. I found her answers in some cases rather formulaic or evasive. She for example just stated that she had not authorised inappropriate conduct a number of times rather than engaging with the question. In addition, when asked whether she had seen an email sent in the middle of the night and to which she was copied met she repeated the response that she had seen it when sent, not answering whether she seen it later.[46]Employment Judge Wright had concluded that Mr Ogbonmwan was on a frolic of his own and I do not disagree with that conclusion. She was, of course, a contemporary and impartial witness to that behaviour at the hearing in October 2021. That supports the claimant’s contention that she had not authorised his behaviour. It is surprising, however, that she has not disclosed any communications with him discussing the conduct of the case. I conclude, on the balance of probabilities, that she did not authorise his conduct and this on its own is not sufficient to amount to scandalous, unreasonable or vexatious conduct.[47]However, I also have grave concerns about her approach to the conduct of the case. She witnessed Mr Ogbonmwan’s behaviour in hearings and did nothing about it. She either read his emails and did nothing about them or failed to do and so did not engage with cases brought in her name. This approach at that time was unreasonable.[48]My primary concern is her continued failure to clarify her claim. It is her claim as she must act so as to ensure the respondent understands the case they must answer, the litigation cannot be progressed or a fair trial achieved without it. It was made clear in the first hearing with Employment Truscott KC that there were major issues in understanding her cases. Further and better particulars produced before that hearing did nothing to clarify the issues. The preliminary hearing in October 2021 made no progress on this front. This conduct has continued despite the change of representation. This was discussed at the preliminary hearing in October 2024 with Employment Judge Cawthray. The claimant was given a direction to clarify her claim both factually and legally. I have set out the direction above and it is entirely clear. Mr Emezie’s argument that this was a direction to reformat the particulars is not accepted and fails in the face of his request to clarify the claims. The updated particulars have been hardly changed and are as difficult to comprehend as before. The key issue is the inability to identify what the key allegations and issues are.[49]I find this conduct unreasonable. The case cannot be progressed until the issues are clarified and the claimant has wilfully refused to do this. The fact that Mr Emezie was reported at saying at the October 2024 hearing that once clarified the claim will be suitable for a five day trial rather than a ten day trial as then presented suggests the task was able to be performed; indeed, the request was made by him so that clearly was the intention. The failure to do so emphasises this refusal to engage with the tribunal’s directions and enable the case to progress. As such, I find it meets the jurisdictional threshold for unreasonable conduct for the purposes of Rule 38(1)(b).[50]This conduct continued after the hearing. I raised at the hearing the claimant reducing her claim to focus on a limited number of key events or treatments. This gave a route to clarify the claims and provide a route forward. Mr Emezie obtained instructions and confirmed this was agreed in principle, without any number or events being specified. I agreed to hold off issuing my decision in case the claimant wanted to revert with specific proposals. Instead, by their letter dated 13 November 2025, the claimant’s solicitors have just listed a number of heads of claim, as set out above. This list includes one item (sexual assaults) that is outside the tribunal’s jurisdiction. The list contains the same heads of claims as in Mr Emezie’s speaker notes provided for the hearing and more heads than listed in Employment Judge Cawthray’s case management order from the October 2024 hearing. Crucially, no events or treatments are provided.[51]This demonstrates another example of refusing to engage with the tribunal or clarify the issues. There is no suggestion that this will change and so the cases risk being stuck without being able to progress even to the stage where the length of the final hearing can be assessed or a timetable to it set. I have already determined that the claimant’s conduct meets the threshold of unreasonableness for the purposes of Rule 38(1)(b) of the Rules. This reinforces this and shows that the conduct is ongoing, even when faced with the prospect of strike out.[52]The failure to comply with Employment Judge Cawthray’s directions to produce further and better particulars also qualifies as a breach for the purposes of Rule 38(1)(c) of the Rules. As the non-compliance prevents the case being progressed, I find it sufficient to consider strike out.[53]I now turn to whether a fair trial is still possible. This is the second limb of the guidance in Bolch and also the third ground in the respondent’s application (pursuant to Rule 38(1)(e)). As referred to above, in considering this a proportionate approach needs to be taken.[54]The events referred to in the claimant’s claim date back to 2019 and 2020. Five years have already passed since then. If the issues were clarified and a trial length of over five days agreed (which I consider overwhelmingly likely), a final hearing is unlikely before 2029. Witnesses would in this situation have to recall events nearly ten years before, which is far from ideal.[55]Mr Emezie points out that extensive notes will be available from then and witness statements can be prepared earlier. Nine out of eleven potential witnesses have expressed readiness to provide evidence, which is an impressive total. He therefore argues that a fair trial is still possible. He also argues that the delay is not the claimant’s fault, contending that the delays have been caused by unreasonable strike out applications and the tribunal’s backlogs.[56]Mr Cook disagrees with those arguments. He contends that inevitably memories fade and reliance on contemporaneous notes provide only limited assistance. The two witnesses not available to give evidence are important omissions and delays in obtaining statements arise from the claimant’s refusal to clarify her case. In any event, fault for delay is not a relevant factor, the test is whether objectively a fair trial can be conducted. The respondent has already incurred substantial costs and the continuance will require more.[57]I have taken these submissions and the evidence heard into account. I agree with Mr Emezie that the respondent has access to a useful cast of witnesses and contemporaneous notes to aid recollection; that said, memories do fade and by 2029 we will be approaching the outer limits of what is reasonable for a fair trial. Some of the delay, particularly with the tribunal backlog, are out of the claimant’s hands. However, other delays have been caused by the conduct of Mr Ogbonmwan, leading to a reasonable put procedurally flawed strike out application. The costs on that are not a relevant consideration, costs in trial preparation are an inevitable part of the litigation process and the fact that money has been spent elsewhere does not change this.[58]Overall, I conclude that if the issues were clarified at this stage, a fair trial would still be objectively possible. However, the issues have not been clarified and the claimant has wilfully failed to do this, despite repeated efforts and the express directions of the tribunal to do so. The letter of 13 November 2025 reinforces that failure. Even if there was a change of heart, there would inevitably be a further substantial delay before these would made clear, causing more delay to the final hearing date. It would take up more tribunal resource and time where the conduct displayed to date is to disregard important tribunal directions. The delay would cause further memory fade and make a fair trial impossible. Accordingly, I conclude that a fair trial is no longer possible. This satisfies the second limb of Bolch and the jurisdictional threshold for strike out under Rule 38(1)(e).[59]Finally, I turn to whether alternative options are available.[60]As a first option, I could simply do nothing or make new directions for clarification. That option is, however, not realistic as the claimant’s continuing failure to clarify the issues has made a fair trial no longer possible; doing nothing or requiring clarification will in all likelihood not cure a position that the claimant has already had ample opportunity to address.[61]I have considered a costs order but the existing order has not been complied with and there is no evidence that the claimant has the ability to satisfy that order, let alone another. I conclude therefore that this will provide little if any incentive for the claimant to change her conduct.[62]Neither party suggested a deposit order and such a route is in any event only available where a claim has little reasonable prospect of success, as provided for in Rule 40(1); without clarity on the issues, I cannot assess their prospect of success. This is therefore not an alternative.[63]We discussed as a final alternative the making of an unless order. Mr Cook rightly pointed out that these are only appropriate when there is a specific and measurable objective outcome that is required. I agree that compliance with an unless order that required the claims to be clarified within a defined timeframe would be at the very least extremely difficult to assess and in all likelihood not take us any further forward. The claimant has in any event ample opportunity to clarify her claims and has chosen not to do so, even with the benefit of a new representation.[64]An unless order might have been possible if the claimant had committed to reliance on a specified number of events or treatments. Whilst she agreed this in principle, no number was offered and the letter of 13 November 2025 appeared to row back from this by instead listing an extensive list of heads of claim, one of which was not even within the tribunal’s jurisdiction. I do not have the power to require that the claims are limited to a specified number of events or treatments and so an unless order requiring her to limit her claim and specify a finite number of events would be unlawful. As a result, this route is not open to me.[65]Accordingly, I have to conclude that no alternative to strike out is available to me. Strike out decisions[66]It was agreed by the parties that the second claim was a duplication of the first claim, except for automatically unfair dismissal, and that the duplicated parts should be struck out. As a duplication, they have no reasonable prospect of success in any event. Accordingly, and by consent, I strike out the second claim, except for the complaint of automatically unfair dismissal.[67]I have concluded thata. the claimant’s conduct met the jurisdictional threshold for the purposes of Rule 38(1)(b) of the Rulesb. the claimant had not complied with the directions of the tribunal and this met the jurisdictional threshold for the purposes of Rule 38(1)(c) of the Rulesc. a fair final hearing of the claims was no longer possible, including for the purposes of Rule 38(1)(e) of the Rulesd. there was no reasonable alternative to strike out[68]As a result, I determine that both cases should be struck out pursuant to each of Rule 38(1)(b), (c) and (e). Reconsideration request[69]The claimant applied by email dated 15 November 2024 for the costs order to be revoked as the underlying reasons for the costs order (the strike out of the cases) had been overturned by the EAT. This request was twice refused by Employment Judge Wright, as referred to above; she said that the costs order was given for different reasons and the application for reconsideration was in any event made out of time.[70]Mr Emezie renewed this request at the hearing. He argued that an application to reconsider a decision can be made at any time and contended that Employment Judge Wright should not have considered the reconsideration applications as she was biased, having had her strike out decision overturned. In any event, the tribunal did not have, in his contention, jurisdiction to make the original costs order as Rule 75 of the Rules prevented any decision being made until a judgment finally determining the proceedings was made; as that decision had been struck out, he argued that the costs order became void. He argued that in any event it was in the interests of justice to revoke the costs order as it was made on the basis that the cases were struck out, a decision that the EAT had overturned.[71]Mr Cook disagreed with these arguments, saying that Mr Emezie had misunderstood Rule 75, that no appeal or reconsideration applications had been made in time and the costs order was unconnected to the strike out decision and so did not become void when the strike out decision was overturned.[72]I considered these submissions and the evidence I was referred to. No appeal or application for reconsideration had been made within the permitted time period and so this application was made out of time. However, Rule 68 of the Rules does give the tribunal a general power of reconsideration so I will consider the application on that basis.[73]However, I do view this application as already considered and determined by Employment Judge Wright. The EAT said she should not consider the strike out application again but not made such determination in relation to the costs order. Indeed, it is notable that the costs order is not referred to in the EAT judgment, undermining the argument the costs order should fall away as a result of that decision. There is no reason that Employment Judge Wright should not consider a reconsideration argument and compelling reasons why she should do so, given her familiarity with the cases and the costs order. There is no basis for Mr Emezie’s argument that she is biased and this is utterly rejected; indeed. Accordingly, given she has determined the issue already, I cannot revisit her decision and the claimant’s recourse is to make an out of time appeal to the EAT.[74]Notwithstanding this decision, I addressed in my oral judgment both the Rule 75 argument and the contention that the overturning of the strike out decision mean the costs order should be revoked in the interests of justice. I therefore briefly reiterate these reasons below.[75]I begin with Rule 75 first. Rule 75(1) provides as follows: A party may apply for a costs order or a preparation time order at any stage up to 28 days after the date on which the judgment finally determining the proceedings in respect of that party was sent to the parties.[76]Mr Emezie argues that this means that a costs order cannot be applied for until after a judgment finally determining the proceedings has been sent to the parties. I do not agree. The Rule clearly provides that there is a cut off date for applications but does not state that they can only be made once a judgment has been made. Indeed, costs order are regularly made before any judgment or interlocutory decision is made. The tribunal had jurisdiction to consider the costs application when made and no overturning of the strike out decision affects this.[77]The second argument seeks to link the costs order with the strike out decision and suggests that is voided or should be set aside because of the strike out decision. As mentioned above, the EAT judgment does not refer to the costs order so there is no express voiding or advice to do so. Indeed, that decision was not made because the EAT found Mr Ogbonmwan’s behaviour acceptable but because of procedural flaws.[78]Written reasons for the costs order were given by Employment Judge Wright. Mr Emezie has referred to the first paragraph of the reasons as evidence that the costs order was made because the cases were struck out. However, that is to misread that paragraph and indeed the written reasons as a whole. The reference to the strike out is merely by way of background and the reasons give a different basis for the decision, namely the conduct of Mr Ogbonwman. It is not related to the costs order and there is therefore no reason, express or implied, that the decision is voided by the strike out decision being overturned. By the same token, it is not in the interests of justice to revisit a separately considered decision which is not dependent on the strike out because that decision was overturned because of procedural irregularity.[79]Accordingly, the claimant’s arguments are rejected.[80]Without any convincing argument that Employment Judge Wright erred in law, it is not in the interests of justice or in accordance with the overriding objective to reconsider a decision that has already been made and reconsidered on the same grounds.[81]As a result, I conclude that there is no reasonable prospect of the original decision being varied or revoked and must therefore refuse the application for reconsideration pursuant to Rule 70(2) of the Rules.[82]Accordingly, the judgment of the tribunal is that the claimant’s application for reconsideration of the costs order made on 5 June 2023 is refused. Approved by: